The Abbott and Costello estate has lost its court appeal over the use of the late comedy duo’s famed “Who’s on First?” sketch in the Tony-nominated (but now closed) Broadway play, Hand to God, on a technicality.

The 2nd U.S. Circuit Court of Appeals in Manhattan upheld a lower-court judge’s December 2015 decision against heirs who had sued the Hand to God producers, according to The Washington Post. The lower court had found that the use of the one minute, seven-second portion of the skit was ”transformative,” meaning that it changed the overall meaning of the skit so much that it was a permitted use under U.S. copyright law.

The October 11 Court of Appeals decision had an unusual twist, however. Writing for a three-judge panel, Judge Reena Raggi found that the play actually did not transform the routine at all and had, on the contrary, “copied the very heart” of the skit, adding “nothing in the record shows that the play imbued the routine with any new expression, meaning, or message. Nor does any new dramatic purpose justify defendants’ extensive copying of the routine.”

However, the judges nevertheless denied the appeal because they said Abbott and Costello’s heirs had not proven that they owned a valid copyright on the material.

Attorney Jonathan Reichman, representing the heirs, said they were “very surprised and upset” at the judges’ ruling, which he said, “came out of left field.” Reichman told the Post that he will ask the judges to reconsider.

Here is Playbill.com’s story about the lower court decision rendered December 17, 2015:

No copyright infringement. That was the decision of a U.S. District Court Judge Dec. 17 in a lawsuit brought by the estate of the late, comedy team Bud Abbott and Lou Costello against Broadway's Hand to God for its use of a segment of the duo's famous "Who’s on First?" routine in the play, according to Deadline.com.

The suit was filed by the estate in June against Robert Askins' new play, which earned five 2015 Tony Award nominations including Best Play.

The lawsuit claimed copyright infringement against playwright Askins as well as the producers and promoters of the critically acclaimed production, which began its life Off-Broadway before opening on Broadway in April 2015. Cease and desist requests were sent, and the estate is also seeking both lawyers' fees and damages.

Judge George B. Daniels rejected the arguments, saying the play's paraphrase of a section of the routine falls with the bounds of "fair use" and is "transformative," meaning it changed the context and meaning of the routine. "Who's on First?," made famous by the team in burlesque, film and TV, involves Abbot trying to describe baseball players' oddball nicknames, Who, What, I Don't Know, and the confused Costello mistaking them for simple words in a sentence.

The judge's ruling said, in part, that the routine, as used in Hand to God is used for "a darkly comedic critique of the social norms governing a small town in the Bible Belt. Thus, Defendants’ use of part ofthe Routine is not an attempt to usurp plaintiffs material in order to 'avoid the drudgery in working up something fresh.' Nor is the original performance ofthe Routine 'merely repackaged or republished.'"

Mark Rachman, a lawyer for the Abbott and Costello heirs (TCA Television Corp., Hi Neighbor and Diana Abbott Colton), had said in a June statement, "Hand to God is using ‘Who’s on First’ not just to get laughs from the audience but also to get people to buy tickets." Rick Miramontez, a spokesperson for the Hand to God production team (The Ensemble Studio Theatre, Manhattan Class Company, playwright Robert Askins, Hand To God LLC and its investors), replied at the time that the lawsuit was baseless, adding, "The material in question is in the public domain, and the show’s producer carefully vetted [it with lawyers for the production]."

The judge concurred, adding a joke in his opinion, "the Complaint doesn’t get past first base."

Producer McCollum's three years of development on this play include its previous acclaimed productions at the Ensemble Studio Theatre (EST) in 2011 and its more recent Off-Broadway debut at MCC Theater in 2014. [The Broadway production closed Jan. 3, 2016.]

Hand to God, according to production notes, "centers on shy, inquisitive student Jason, who finds an outlet for his burgeoning creativity at the Christian Puppet Ministry in the devoutly religious, relatively quiet small town of Cypress, Texas. Jason's complicated relationships with the town pastor, the school bully, the girl next door and — most especially — his mother are thrown into further upheaval when Jason’s hand puppet Tyrone — once soft-spoken — takes on a shocking and dangerously irreverent personality all its own. As Tyrone’s influence over Jason steadily grows, Hand to God explores the startlingly fragile nature of faith, morality, and the ties that bind us."

Here is Abbott and Costello performing “Who’s on First?” in the film The Naughty Nineties: